Jessica McCormack and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 647
[2013] AATA 647
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1590
Re
Jessica McCormack
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 12 September 2013 Place Sydney The Tribunal sets aside the decision under review and instead decides that Ms McCormack should be paid arrears of Child Care Benefit and Child Care Rebate as if she had requested a review within 52 weeks of the variation decision having been made.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – Child Care Benefit – Child Care Rebate – whether special circumstances prevented the applicant from making an application within 52 weeks – whether applicant entitled to arrears – backdating – decision under review set aside
LEGISLATION
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 64E, 64EA, 109D, 109D(2)
REASONS FOR DECISION
Ms N Bell, Senior Member
12 September 2013
Jessica McCormack’s youngest child was born in February 2007. During her pregnancy Ms McCormack suffered a serious spinal condition that has necessitated five surgeries and has caused her severe and chronic pain.
When Ms McCormack claimed Child Care Benefit in respect of her child on 26 August 2008, she was granted a benefit for up to 24 hours per week. Sometime later, on 1 August 2011, she requested a review of that decision and a Centrelink officer agreed that, because of her disabilities, Ms McCormack should receive up to 50 hours of Child Care Benefit and Child Care Rebate per week. That varied decision was given effect from 1 July 2010. Ms McCormack says the new decision should be backdated to the date of the original decision – 29 August 2008.
The difficulty with that is that Ms McCormack took until 1 August 2011 to request a review of the original decision. Leaving aside her reasons for that delay, section 109D of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) provides that, generally, a person must request a review within 52 weeks of being notified of a decision. There are some exceptions, but this type of decision is not one of them. Section 64EA of the Act provides that where in a case such as this an application for review is made after the end of the income year following the one in which the original decision was made, any variation of the original decision only has effect from the start of the income year before the one in which the application for review was made. In Ms McCormack’s case, that means 1 July 2010.
However, section 109D(2) recognises that there may be special circumstances that prevented a person from making an application for review of a decision within 52 weeks of being notified of an original decision. The provision allows for an application for review to be made after the end of 52 weeks in such circumstances.
The issue for me to consider is whether Ms McCormack’s circumstances were special and prevented her from making an application for review within the 52 weeks after 29 August 2008.
Ms McCormick said that during her first pregnancy, in 2006, her spine collapsed, affecting her mobility and subjecting her to intense pain. She had her first spinal operation in 2007 when her child was just three months old. Ms McCormack said she was prescribed slow release morphine to deal with the pain and she described “falling into a big hole” thereafter, unable to see any future, unable to get out of bed and unable to care for her child.
Ms McCormack said her doctor prescribed anti-depressants, but the feelings of depression, mixed with bouts of anxiety, continued until the last quarter of 2009. Ms McCormack said of the period leading up to 2009 that she had no sense of how her rent got paid, or how bills were dealt with. She said she was having suicidal thoughts.
Ms McCormack and her husband had separated, but he stayed nearby to help with their child and to care as best he could for his wife.
Ms McCormack said that she did have some contact with Centrelink over the years and recalled telephoning Centrelink in August 2008 to find out what payments she could obtain in relation to her child. She said she was given various information including advice that because she and her husband were not both working then she could not obtain the full 50% childcare rebate. Ms McCormack said she recalls telling Centrelink that she was disabled, but she said that, especially in the state she was in, “you don’t second guess Centrelink; they told me and that’s it”. She said she simply accepted that – until she saw her accountant to have her tax done in 2011 and the accountant asked why she was not getting the 50% child care rebate. Ms McCormack said she had not thought about it before then.
Stephen McCormack said his wife descended slowly into pain and depression throughout 2007 and 2008. He described her withdrawal from their relationship, leading to their separation in July 2008, and his attempts to stay close by to help care for her and for their child. Her physical and mental health seemed to him to be so badly deteriorated that he thought she could not care for herself or for their child. Mr McCormack said this very difficult period lasted for about twelve months. He said he had been a Police Officer for the past 13 years and had seen people in precarious mental states. He said he was alarmed and very concerned about his wife’s mental state at that time.
Mr McCormack said that, while all bills were addressed to him and he took care of rent payments and other necessities, he did not read his wife’s Centrelink mail. He had no knowledge of her appeal rights in relation to the 29 August 2008 decision about the child care rebate. He was firmly of the view that, had his wife read and understood such a letter at that time, she would have raised it with him for assistance in dealing with it.
Dr Pit Young, Ms McCormack’s general practitioner, said she first treated Ms McCormack with her first baby and after she had had a fall in a shopping centre that caused her lumbar spine injury. Dr Young said that all surgical interventions failed and Ms McCormack became reliant on very strong narcotics for pain relief. She said that at one stage she was taking 60 mg of oral morphine twice per day. Dr Young said that a dosage of narcotic at this level affects a person’s ability to think and reason.
Dr Young said Ms McCormack also developed severe depression throughout 2008 and 2009. She said the combination of narcotics and severe depression affected Ms McCormack’s cognitive capacity and rendered her unable to think clearly. Dr Young confirmed that Ms McCormack was suicidal at one stage in the period and that her condition took a great toll on her relationship with her husband.
When it was pointed out to Dr Young that Ms McCormack contacted Centrelink at various times throughout 2008 and requested a review of another decision in 2009, she said she was aware that Ms McCormack was having contact with Centrelink. She said she thought it likely that her husband was assisting her and doubted very much that Ms McCormack understood matters fully at that stage. She said Ms McCormack was not rendered incapable of speaking to people, but her comprehension was impaired.
The Secretary submitted that Ms McCormack was not prevented from requesting a review of the August 2008 decision because she had made contact with Centrelink on a number of occasions throughout 2008 and had requested a review of another decision in 2009.
However, this is no answer to the persuasive medical and lay evidence of Ms McCormack’s seriously impaired physical and mental state from August 2008 to August 2009. Mere contact does not, as Dr Young said, mean full comprehension. In any event, I note that the decision sought to be reviewed in 2009 was a decision to suspend Ms McCormack’s Parenting Payment Single, thereby radically affecting her income. I also note that Mr McCormack accompanied Ms McCormack to the Centrelink office in order to pursue this request. This tells nothing of Ms McCormack’s ability to exercise her rights in relation to a decision about an ancillary payment that was made in 2008.
I consider that in the relevant period Ms McCormack’s physical and mental condition created circumstances that prevented her from making an application under section 109A of the Act for review of the August 2008 decision. I consider that Ms McCormack should be permitted to make an application for review of that decision up to and including 1 August 2011 in accordance with section 109D(2) of the Act. It follows that she should be paid full arrears.
DECISION
The Tribunal sets aside the decision under review and instead decides that Ms McCormack should be paid arrears of Child Care Benefit and Child Care Rebate as if she had requested a review within 52 weeks of the variation decision having been made.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ......[Sgd]..................................................................
Associate
Dated 12 September 2013
Dates of hearing 3 April and 11 July 2013 Applicant In person with the assistance of Mr S McCormack
Solicitors for the Respondent Ms K Martini, DHS Program Review Branch
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